Secret Evidence Measure Resoundingly Defeated; ACLU Applauds Senate Vote Favoring Basic Due Process

November 8, 2001 12:00 am

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WASHINGTON — Calling it a victory for basic due process rights, the American Civil Liberties Union applauded the overwhelming defeat in the Senate today of a measure that would have further stripped away the safeguards that exist to prevent the incarceration and deportation of legal residents on the basis of secret evidence.

“The incarceration and deportation of legal residents and others on the basis of secret evidence is a practice reserved for totalitarian countries, not the United States,” said Timothy Edgar, an ACLU Legislative Counsel. “While we don’t feel the safeguards currently in place are adequate, we applaud the Senate’s courageous decision today to protect basic rights in the face of misguided calls to tear up the Constitution in the wake of the terrible attacks of September 11.”

The Senate blocked the passage of an amendment introduced by Sen. Robert C. Smith (R-NH) to the Intelligence Authorization Bill that would have stripped away the requirement that the government present the accused with a summary of any secret evidence – classified information not shown to a defendant – used against him or her during deportation proceedings before the so-called Alien Terrorist Removal Court. The Smith amendment failed after the Senate voted unanimously for substitute language that would simply require the Attorney General to submit a report on the matter in three months.

Both Sens. Patrick Leahy (D-VT) and Bob Graham (D-FL) spoke against the Smith Amendment in its original form, saying Congress should resist “going down the road” of the notorious Alien and Sedition Acts of 1798, the laws passed during the administration of John Adams that allowed the arbitrary and utterly unwarranted deportations of law-abiding non-citizens. In addition, the Department of Justice publicly opposed the measure.

During the 2000 Presidential campaign, President Bush publicly denounced the use of secret evidence against non-citizens. He compared the use of secret evidence – which is almost exclusively utilized in proceedings against Arabs and Muslims – with racial profiling. Last week, INS Commissioner Jim Ziglar said there were no present plans to use secret evidence against any of the individuals arrested or detained in connection with the September 11, 2001 terrorist attacks.

Still, supporters of secret evidence, such as the Federation for American Immigration Reform (FAIR), have lost no time in trying to exploit the tragedy to advance their broader anti-immigration agenda, trying to scare members of Congress into passing new Alien Acts. Today, the Senate showed it was not intimidated by these tactics.

“We hope and expect the Administration will stick by its earlier condemnation of secret evidence when preparing the report mandated in the modified Smith Amendment,” Edgar said. “If we sacrifice the most basic constitutional protections, the terrorists will have won.”

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